Filing a Proof of Claim: Part 3 – Calculating What To Claim

(Note: this is a multi-part post concerning how to file a proof of claim in the Heller Ehrman LLP Case: 08-32514 bankruptcy in the United States Bankruptcy Court, Northern District of California)

Before you attempt to complete the Proof of Claim form, you need to calculate the amount of money Heller Ehrman owes you.  The most vital document you will need is your last earnings statement that you received.

1.  Determine Hourly Wage

In the Earnings section of the Earnings Statement, on the left hand side, note the Gross Pay amount and the number of hours.

Divide the Gross Pay by the number of hours to determine the Hourly Wage

Example:  Gross Pay = $2,000 and Number of Hours = 75.  The Hourly Wage would be 2000/75 = $26.67 per hour.

2.  Determine Accrued Vacation Amount

In the Other Benefits and Information section of the Earnings Statement, note the Vacation Bal amount.

Multiply the Vacation Bal amount by the Hourly Wage.

Example: Vacation Bal = 50 hours and Hourly Wage = $26.67.  The Accrued Vacation Amount would be $1,333.50.

3.  Determine the WARN Act Amount

Using your Termination Date, calculate the number of Working Days between your Termination Date and November 28, 2008. 

Multiply that number of days by the Hourly Wage.

Example: if you were terminated on October 10, 2008, there were 35 working days. Working Days = 35 and Hourly Wage = $26.67 and the standard Heller Ehrman workday was 7.5 hours.  The WARN Act Amount would be 35 * ($26.67 * 7.5) = $7,000.

Note: For the New York office the standard workday was 7 hours and for Anchorage the standard workday was 8 hours.

4.  Determine WARN Act Period Accrued Vacation

According to the September 26, 2008 Dissolution Email you were to be paid “full salary and benefits until the shutdown.”  There is an additional amount of vacation accrual owed to you for the Working Days (the days from your Termination Date until November 28, 2008).

Vacation Accrual Rates (the number of days earned per pay period) were set by Human Resources based on your position and your longevity with the Firm.

At the time of this posting, I am still trying to secure this information for attorney and non-attorney staff.   

Here are preliminary vacation accrual rates:


3 years service or less: 3.17 hours per pay period
4 – 9 years service: 4.62 hours per pay period
10 years service or more: 6.06 hours per pay period


5.77 hours per pay period

Take the number of Working Days, divide by 10 (number of Working Days in a Pay Period), multiply by the Vacation Accrual Rate and then multiply by the Hourly Wage.

Example:  Working Days = 35, Pay Period = 10,  Vacation Accrual Rate = 4.93 and Hourly Wage = $26.67.  The WARN Act Accrued Vacation Amountwould be ((35 / 10) * 4.83) * $26.67) = $431.20.

Using the above amount, each employee with the same hourly rate and other numbers would have a total wage claim of $8,764.53.

5.  Determine Waiting Time Penalties (California employees only)

Only California employees are entitled to Waiting Time Penalties and as mentioned in the previous post, most former Heller employees, if not all, would be entitled to the maximum amount.

Take the Waiting Time Penalty Period, multiply it by the number of hours in the Standard Workday, and then multiply that amount by the Hourly Wage.

Example: Waiting Time Penalty Period = 30 days, Standard Workday = 7.5 hours and Hourly Wage = $26.67.  The Waiting Time Penalties = $6,000.00

Using the above amount, each California employee with the same hourly rate and other numbers would have a total wage claim of $14,764.53.


Please stay tuned for more information as to updates or changes on the calculation method.  If you would like to download an Excel spreadsheet formatted with the necessary calculations (you only need to add salary and other information specific to you), then download it here.


15 Responses to “Filing a Proof of Claim: Part 3 – Calculating What To Claim”

  1. 1 Observer 4 January 2009 at 7:36 pm

    Obviously, this calcuation does not fit for employees who were working part time (attorney and non-attorney). Part-timers (other than those working on a temporary project with defined time frame) still have a claim, but it will have to be calculated somewhat differently.

  2. 2 Thomas MacEntee 4 January 2009 at 7:39 pm

    True, but I’m trying to streamline the process and minimize the number of emails I am receiving directly on how to calculate. Anyone filing a proof of claim basically needs to look at their specific situation at Heller and calculate their numbers accordingly.

  3. 3 Observer 4 January 2009 at 7:45 pm

    Not criticizing your general presentation, Tom, which was quite good.

  4. 4 Thomas MacEntee 4 January 2009 at 7:47 pm

    Thanks and no criticism taking – this series of posts has been problematic and took most of the weekend to formulate. I really appreciate your review of them!!!

  5. 6 anon 4 January 2009 at 9:04 pm

    Thanks for the great information. Here are some annoying questions that hopefully someone can answer: What is considered to have priority under 11 U.S.C. 507(a) here? The statute says wages, salaries, or commissions earned in the final 180 days. Do all WARN monies fall under this? Do we need to prorate out our non WARN accrued vacation? Would 2000 hour bonuses “earned” in September or October count?

  6. 7 Observer 4 January 2009 at 10:33 pm

    anon, those are good questions. I don’t know the answers off the top of my head. Need to have a look at Collier on Bankruptcy, which I don’t currently (being unemployed) have ready access to.

  7. 8 Thomas MacEntee 4 January 2009 at 11:09 pm

    Anon and Observer

    I am “posted out” tonite but I tend to pick up the series on Proof of Claims tomorrow.

    The issue of which portion of the wages qualify as a priority claim will be the topic of one post (or at least what we feel should be priority) and how to actually fill out the form will be the final post.

    Thanks for your patience.

  8. 9 treading water 5 January 2009 at 3:13 am

    Thomas, thanks for all your dedication and commitment to this project. We appreciate it very much!

  9. 10 PiRsquared 5 January 2009 at 9:04 am

    Great instructions! Make sure you look at your last couple of paystubs. In my case, my final paystub did not include the incremental accrual of vacation pay. Don’t know why, but I’ll therefore include my final two paystubs and demonstrate the accrual manually in a cover note to the BK filing. Every dollar helps!

  10. 11 NY'er 5 January 2009 at 10:36 am

    Just a note: NY’s vacation accrual per pay period was 4.31. Thanks for putting this together, Tom!

  11. 12 Thomas MacEntee 5 January 2009 at 10:54 am

    thanks NY’er! Obviously this will be an evolving process as the facts come in.

  12. 13 Former Associate 5 January 2009 at 12:46 pm

    Thank you. This is incredibly helpful.

  13. 14 News Elf 8 January 2009 at 6:35 pm

    Thank you for putting this together. The various penalties and WARN act monies owed has been incredibly confusing for me, so having a spreadsheet that puts everything together in a simple, straightforward way is a godsend.

  14. 15 Former Paralegal 11 January 2009 at 2:35 pm

    So I write here in gratitude. I was laid off under the WARN Act, am currently unemployed, and am due WARN Act wages and both pre- and post-Warn Act notice accrued vacation until 11/28/2008. I seem to have been omitted from the creditors’ list and only stumbled on the bankruptcy filing by accident. To say I am suspicious about the oversight would be an understatement, i.e., there is no way they could not have know I was owed accrued vacation regardless of the WARN Act circumstances. I was checking on the CA class action filing status and also searched bankruptcy by chance. Given the obviousness of my claim, I can’t imagine who else has been left off as a creditor. Nonetheless, I am grateful for your hard work in providing the methods for calculating claim amounts and providing so much ongoing information about bankruptcy in general and the case specifically. It will make my claims process so much easier and my claim the most accurate it can be. Thanks so much!

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